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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

HENRY B. MOORE, Jr., 

 Petitioner, 

 vs. Civil Action 2:16-cv-598 

 Criminal No. 2:11-cr-173(2) 

 Judge Marbley 

 Magistrate Judge King 

UNITED STATES OF AMERICA, 

 Respondent. 

 REPORT AND RECOMMENDATION 

 This is an action under 28 U.S.C. § 2255 in which Petitioner asks 

that his conviction on a charge of brandishing a firearm during the 

commission of a crime of violence, in violation of 18 U.S.C. § 

924(c)(1)(A)(i), (ii), be vacated. This matter is now before the Court 

on Petitioner’s June 2016 Motion to Vacate under 28 U.S.C. § 2255, ECF 

No. 145 (“Motion to Vacate”), Respondent’s Motion to Dismiss, ECF No. 

150, and Petitioner’s Reply to the Motion to Dismiss, ECF No. 151. For 

the reasons that follow, it is recommended that the Motion to Dismiss

be granted. 

The Indictment charged Petitioner with four (4) violations of 

federal law: conspiracy to commit armed bank robbery in violation of 

18 U.S.C. § 371 (Count 1), armed bank robbery in violation of 18 

U.S.C. § 2113(a),(d) (Count 2), carrying and brandishing one or more 

firearms during and in relation to a crime of violence as described in 

Counts 1 and 2, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii), 

and 2 (Count 3), and being a felon in possession of firearms in 

violation of 18 U.S.C. §§ 922(g)(1), 924(a) (Count 6). Indictment, ECF 

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No. 16. In August 2011, Petitioner entered into a plea agreement by 

which he agreed to plead guilty to armed bank robbery as charged in 

Count 2, and to carrying and brandishing a firearm during a crime of 

violence as charged in Count 3. Plea Agreement, ECF No. 50. Petitioner 

also expressly agreed that his conviction on Count 3 requires “a 

mandatory consecutive seven year term of imprisonment” up to “a 

maximum life term of imprisonment.” Id. at PAGEID# 131. 

On December 2, 2011, Petitioner was sentenced to 36 months in 

prison on the armed bank robbery charge and to 84 months in prison 

(i.e., the statutory minimum) on the gun charge, such sentences to be 

served consecutively. Judgment, ECF No. 74; Amended Judgment, ECF No. 

85. The remaining two (2) charges against Petitioner were dismissed. 

Id. Petitioner did not file an appeal from his conviction or sentence. 

Proceeding with the assistance of counsel, Petitioner filed the 

Motion to Vacate on June 23, 2016, claiming that his conviction for 

armed bank robbery 

categorically fails to qualify as a “crime of violence” 

under § 924(c)’s “force” clause [i.e., § 924(c)(3)(A)], and 

because § 924(c)’s residual clause [i.e., § 924(c)(3)(B)] 

is unconstitutionally vague, no legal basis exists for a § 

924(c) conviction. 

Motion to Vacate, PAGEID# 471. 

As noted supra, Petitioner was convicted and sentenced under 

Section 924(c)(1)(A)(i), (ii), which requires enhanced punishment for 

any person who, inter alia, “uses, carries, or possesses a firearm 

during and in relation to” or “in furtherance of” any crime of 

violence.1

 The term “crime of violence” is defined as a felony that: 

 

1 Conviction for carrying a firearm during and in relation to a crime of 

violence requires a sentence to “a term of imprisonment of not less than 5 

years” and, “if the firearm is brandished . . . a term of imprisonment of not 

less than 7 years. . . .” 18 U.S.C. § 924(c)(1)(A)(i), (ii).

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(A) has as an element the use, attempted use, or 

threatened use of physical force against the person or 

property of another, or 

(B) that by its nature, involves a substantial risk that 

physical force against the person or property of 

another may be used in the course of committing the 

offense. 

18 U.S.C. § 924(c)(3).2

 Petitioner argues, first, that his conviction under § 

924(c)(1)(A)(i), (ii) is unconstitutional in light of Johnson v. 

United States, -- U.S. --, 135 S.Ct. 2551 (2015). In Johnson, the 

United States Supreme Court concluded that the residual clause of the 

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), is 

unconstitutionally vague and violates the Constitution’s guarantee of 

due process. However, Petitioner was not sentenced under 18 U.S.C. § 

924(e)(1). Petitioner was sentenced, pursuant to the express terms of 

his plea agreement, to 84 months in prison for brandishing a firearm 

“during and in relation to a crime of violence” within the meaning of 

18 U.S.C. § 924(c)(1)(A)(i), (ii) - i.e., the armed bank robbery to 

which he also pleaded guilty. Moreover, the United States Court of 

Appeals for the Sixth Circuit has held that the “residual clause” of § 

924(c)(3)(B) is unaffected by Johnson. United States v. Taylor, 814 

F.3d 340, 379 (6th Cir. 2016)rehearing en banc denied (May 9, 2016). 

 Petitioner also argues that his conviction for armed bank robbery 

under 18 U.S.C. § 2113(a), (d) cannot qualify as a crime of violence 

under the “force clause” of 18 U.S.C. § 924(c)(3)(A) in light of 

Descamps v. United States, 570 U.S. --, 133 S.Ct. 2276 (2013). In 

Descamps, the United States Supreme Court held that, in determining 

 

2 Subsection A is the “force clause” referred to by Petitioner in the Motion to 

Vacate; Subsection B is the “residual clause” referred to by Petitioner in 

the Motion to Vacate. 

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whether a prior conviction may properly serve as a predicate crime of 

violence within the meaning of the ACCA, a court must look to the 

statutory elements of the prior crime. If the statute sets out a 

single (or indivisible) set of elements to define a single crime, a 

court must apply a categorical approach: 

Sentencing courts may “look only to the statutory 

definitions” – i.e., the elements – of a defendant’s prior 

offenses, and not “to the particular facts underlying those 

convictions.” [Taylor v. United States, 495 U.S. 575,] 600 

[(1990)]. If the relevant statute has the same elements as 

the “generic” ACCA crime, then the prior conviction can 

serve as an ACCA predicate; so too if the statute defines 

the crime more narrowly, because anyone convicted under 

that law is “necessarily . . . guilty of all the [generic 

crimes’] elements.” Id. at 599. But if the statute sweeps 

more broadly than the generic crime, a conviction under 

that law cannot count as an ACCA predicate, even if the 

defendant actually committed the offense in its generic 

form. The key . . . is elements, not facts. 

133 S.Ct. at 2282 (emphasis in original). In Mathis v. United States, 

-- U.S. --, 136 S.Ct. 2243 (2016), the Supreme Court recognized that 

some statutes “may list elements in the alternative, and thereby 

define multiple crimes.” Id. at 2249. Where the statute governing the 

predicate offense has such a “divisible” structure, a court may use a 

“modified categorical approach,” by which the court 

looks to a limited class of documents (for example, the 

indictment, jury instructions, or plea agreement and 

colloquy) to determine what crime, with what elements, a 

defendant was convicted of[,] . . .[and] can then compare 

that crime . . . with the relevant generic offense. 

Id. at 2239. 

To the extent that the Motion to Vacate relies on Descamps, it 

would appear to be untimely. See 28 U.S.C. § 2255(f)(establishing a 

one-year statute of limitations for motions to vacate under 28 U.S.C. 

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§ 2255). Moreover, Descamps has not been held to apply retroactively 

on collateral review. Even overlooking these observations and ignoring 

the fact that Petitioner was not sentenced under the ACCA, however, 

Descamps and Mathis do not offer the relief sought by Petitioner. 

 Petitioner’s conviction for armed bank robbery under 18 U.S.C. § 

2113(a), (d) formed the predicate crime of violence underlying his 

conviction under § 924(c)(1)(A)(i), (ii). The statute prohibiting bank 

robbery provides in pertinent part as follows: 

(a) Whoever, by force and violence, or by intimidation, 

takes, or attempts to take, from the person or presence of 

another, or obtains or attempts to obtain by extortion any 

property or money or any other thing of value belonging to, 

or in the care, custody, control, management, or possession 

of, any bank, credit union, or any savings and loan 

association; or 

Whoever enters or attempts to enter any bank, credit union, 

or any savings and loan association, or any building used 

in whole or in part as a bank, credit union, or as a 

savings and loan association, with intent to commit in such 

bank, credit union, or in such savings and loan 

association, or building, or part thereof, so used, any 

felony affecting such bank, credit union, or such savings 

and loan association and in violation of any statute of the 

United States, or any larceny— 

Shall be fined under this title or imprisoned not more than 

twenty years, or both. 

* * * 

(d) Whoever, in committing, or in attempting to commit, any 

offense defined in subsections (a) and (b) of this section, 

assaults any person, or puts in jeopardy the life of any 

person by the use of a dangerous weapon or device, shall be 

fined under this title or imprisoned not more than twentyfive years, or both. 

18 U.S.C. § 2113(a), (d). 

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The United States Court of Appeals for the Sixth Circuit has held 

that § 2113(a) contains 

a divisible set of elements, only some of which constitute 

violent felonies – taking property from a bank by force and 

violence, or intimidation, or extortion on one hand and 

entering a bank intending to commit any felony affecting it 

(e.g., such as mortgage fraud) on the other. 

United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016), rehearing 

en banc denied (July 20, 2016). Under these circumstances, it is the 

modified categorical approach that should be followed to determine 

whether a particular §2113(a) conviction qualifies as a crime of 

violence. Id. (citing Descamps, 133 S.Ct. at 2285). 

 Count 2 of the Indictment in this case, the conviction for which 

formed the basis of Petitioner’s conviction and sentence under § 

924(c)(1)(A)(i), (ii), charged as follows:

On or about June 10, 2011, in the Southern District of 

Ohio, the defendants, ANTHONY C. BARRETT, HENRY B. MOORE, 

JR. and NATHANIEL CREWS, JR., by force and violence and by 

intimidation, did take from the person and presence of bank 

employees, approximately $7,098.00 in U.S. currency 

belonging to and in the care, custody, control, management 

and possession of Huntington National Bank, 2631 E. Main 

Street, Bexley, Ohio, the deposits of which were then 

insured by the Federal Deposit Insurance Corporation, and 

the defendants, ANTHONY C. BARRETT, HENRY B. MOORE, JR. and 

NATHANIEL CREWS, JR., in committing the aforesaid offense, 

did put in jeopardy the lives of employees and customers of 

said bank by means and use of a dangerous weapon, that is, 

one or more firearms. 

In violation of 18 U.S.C. §§2113(a) and (d) and 2. 

Indictment, PAGEID# 51 (emphasis added). Plainly, Petitioner was 

charged under the first paragraph of § 2113(a). In considering the 

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career offender provisions of the United States Sentencing Guidelines, 

USSG § 4B1.1(a)(3),3

 the Sixth Circuit expressly held that armed bank 

robbery by force and violence and by intimidation is a crime of 

violence. 

Bank robbery by “force and violence” plainly involves “the 

use, attempted use, or threatened use of physical force.” 

Whether the same is true of bank robbery by “intimidation” 

is a closer question, although not by much. In the context 

of § 2113(a), “intimidation” means “conduct and words . . . 

calculated to create the impression that any resistance or 

defiance...would be met by force.” United States v. 

Gilmore, 282 F.3d 398, 402 (6th Cir. 2002); see also James 

Lindgren, “Blackmail and Extortion,” in 1 Encyclopedia of 

Crime and Justice 115, 115 (Sanford H. Kadish ed., 1983) 

(“[R]obbery by intimidation” involves the “threat[ ] to do 

immediate bodily harm, whereas ...blackmail or extortion” 

involves the “threat[ ] to do bodily harm in the future.”). 

Intimidation concerns whether an ordinary person would feel 

threatened under the circumstances, Gilmore, 282 F.3d at 

403, but the prosecution must prove that the defendant 

possessed “general intent—that is . . . knowledge” — with 

respect to taking the property by intimidation, Carter v. 

United States, 530 U.S. 255, 268, 120 S. Ct. 2159, 147 

L.Ed.2d 203 (2000). The defendant must at least know that 

his actions would create the impression in an ordinary 

person that resistance would be met by force. A taking by 

intimidation under § 2113(a) therefore involves the threat 

to use physical force. See, e.g., United States v. McNeal, 

818 F.3d 141, 153, (4th Cir. 2016); United States v. Jones, 

932 F.2d 624, 625 (7th Cir. 1991) (“There is no ‘space’ 

between ‘bank robbery’ and ‘crime of violence’” under the 

physical-force clause of § 4B1.2(a).); United States v. 

Selfa, 918 F.2d 749, 751 (9th Cir. 1990). 

We reject McBride's contention that daylight can be found 

between “intimidation” and “threatened use of physical 

force.” Although McBride is correct that intimidation can 

be communicated by “words, demands, and gestures,” so too 

with the threat of physical force, Gilmore, 282 F.3d at 

402. Furthermore, even if we accept McBride's arguments 

that one can threaten to cause bodily injury that does not 

 

3 The definition of a crime of violence for purposes of the career offender 

guideline, USSG § 4B1.1(a)(3), is identical to that found in 18 U.S.C. § 

924(c)(3)(A). 

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require physical force . . . that is not the case with 

intimidation in the § 2113(a) context, which requires the 

threat to use physical force, not merely to cause bodily 

injury. 

McBride, at 295-96.4

 Using this same reasoning, this Court concludes 

that Petitioner’s conviction for armed bank robbery under 18 U.S.C. § 

2113(a), (d) qualifies as a crime of violence within the meaning of 18 

U.S.C. § 924(c)(3)(A) and properly served as a predicate supporting 

Petitioner’s conviction and sentence under 18 U.S.C. § 

924(c)(1)(A)(i), (ii). 

 It is therefore RECOMMENDED that the Motion to Dismiss, ECF No. 

150, be granted. 

If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 

4 McBride challenged his designation as a career offender under the United 

States Sentencing Guidelines, § 4B1.1(a)(3), which requires at least two 

prior felony convictions for a crime of violence or a controlled substance 

offense. The Sixth Circuit rejected McBride’s contention that his prior bank 

robbery convictions could be regarded as crimes of violence only through the 

guideline’s residual clause, which had been invalidated following Johnson.

See United States v. Pawlak, 822 F.3d 902, 910-11 (6th Cir. 2016). McBride, 

826 F.3d at 295. 

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The parties are specifically advised that the failure to object 

to the Report and Recommendation will result in a waiver of the right 

to de novo review by the District Judge and waiver of the right to 

appeal the judgment of the District Court. See, e.g., Pfahler v. 

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that 

“failure to object to the magistrate judge’s recommendations 

constituted a waiver of [the defendant’s] ability to appeal the 

district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 

984 (6th Cir. 2005) (holding that defendant waived appeal of district 

court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely 

objections are filed, appellate review of issues not raised in those 

objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 

2007) (“[A] general objection to a magistrate judge’s report, which 

fails to specify the issues of contention, does not suffice to 

preserve an issue for appeal . . . .”) (citation omitted)). 

 s/Norah McCann King 

 Norah McCann King 

 September 28, 2016 United States Magistrate Judge 

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